Felony Representation

Chapter 1.   OVERVIEW 

 

1 Statement of Purpose and Principles   

The District of Columbia Sentencing Commission (“the Commission”) was charged with  developing a comprehensive structured sentencing system for D.C. or explaining why no  such system was needed. 

In examining the existing system, the Commission discerned disparity in sentencing,  some of which could be explained by legitimate sentencing factors relating to the nature of the crime or the background of the offender, but some of which was apparently  attributable to differences in judicial philosophy.

 Both truth in sentencing and basic  fairness require that similarly situated offenders should receive similar sentences for  committing the same crime in essentially the same way and that offenders receive different sentences where either the nature of the offense or the history of the offender is  different.  The Commission thus concluded that the District could benefit from a  comprehensive structured sentencing system, and the Commission embarked upon the  difficult task of creating workable sentencing guidelines.    

 

Following the lead of other jurisdictions and an earlier effort in the District, the  Commission developed a grid to plot two of the dominant factors in sentencing: the  offense of conviction (on the vertical axis) and the criminal history of the offender (on  the horizontal axis). At the intersection of these two factors on the grid, each box contains  the sentencing options and prison ranges for that particular combination of the crime of  conviction and criminal history of the offender.  The Master Grid has 45 boxes and the  Drug Grid has 15 boxes. There is considerable overlap between adjoining boxes, both  horizontally and vertically; but, in general, as the seriousness of the offense and the  criminal history of the offender increase, the length of the prison sentences increase and  the alternatives to incarceration decrease. 

In creating these boxes, the Commission did not attempt to create prison ranges and  sentencing options based upon what the  Commission as a whole thought might be  appropriate for that combination of offense  of conviction and criminal history of the  offender (a normative method). Instead, the options and ranges in each box were based on  historical data from the Superior Court Criminal Information System computer over the  past eight years, with some adjustment for consistency and symmetry.  See Appendices  A, B, E and F.  The Commission took the historical approach because it was not the  intent of the Commission overall to either lengthen or shorten average sentences.  The  Commission’s goal was to create a sentencing system that would reduce disparity and  increase the likelihood that similarly situated offenders would be treated similarly. In  developing the grid, the Commission attempted to move sentences toward the historical  center, without shifting that center either up or down. Although the prison ranges are  relatively broad, they nevertheless limit discretion to approximately the middle 50  percent of historical prison sentences. The guidelines also permit a sentence of probation  if, historically, at least 25 percent of cases in a given box resulted in probation.  Similarly,  a short split sentence (X months, ESS all but  6 months (or less but not all) followed by  probation) is permissible if, historically, at least 25 percent  of the cases in a given box  resulted in either probation or a short split. Although the guidelines permit probation or a  short split under these circumstances, such a sentence is not required.  

The Commission also established standards  for departing from the recommended prison  ranges in extraordinary cases, rules for imposing concurrent or consecutive sentences,  and adjustments and exceptions to sentencing “in the box.”  Together, the grids,  standards, rules, adjustments and exceptions form the Sentencing Guidelines for the  District of Columbia.  Any sentence that is meted out in conformity with these Guidelines  is a “guideline compliant” sentence.  Any  sentence that does not, is not a “guideline  compliant” sentence. 

The guidelines should give judges, practitioners, defendants, crime victims, and the  community at large a better understanding of the likely consequences of criminal behavior and greater confidence that sentences will be predictable and consistent.  Although the guidelines are voluntary, the Commission expects a high degree of  compliance.  Nevertheless, judges are free  to impose any lawful sentence they choose.  Sentences under the guidelines, just like sentences before the guidelines, are not appealable except when they are unlawful.   In order to assist the Commission in  evaluating the guidelines, judges will be required to acknowledge that they have followed  the guidelines, to provide the departure principle(s) upon which they relied to sentence  “outside the box,” or to state why they did not use the guidelines.

In the end, sentences in the District of Columbia are supposed to: 

(1) Reflect the seriousness of the offense and the criminal history of the 

offender; 

(2) Provide for just punishment and afford adequate deterrence to potential 

criminal conduct of the offender and others; and  

(3) Provide the offender with needed educational or vocational training, 

medical care, and other correctional treatment. 

D.C. Official Code § 24-403.01(a).  The  Commission hopes that the process of  developing and implementing voluntary guidelines for the District of Columbia will  contribute to these goals. 

For further information on the development of the guidelines, see the 2003 Report, which  can be found at http://sentencing.dc.gov.

2 Key Features of the Sentencing Guidelines 

The key features of the Sentencing Guidelines are: 

1 Voluntary Guidelines

These guidelines are voluntary.  This means that judges are not required to follow them.  It also means that a lawful sentence cannot be appealed whether or not the judge complies with the guidelines or the procedures recommended in these instructions. 

In order to eliminate unwarranted disparities in sentencing, the Commission hopes for  and expects a high degree of compliance.  We will have the opportunity during the next  two and a half years -- and  thereafter -- to make adjustments if necessary.  The  Commission welcomes comments and suggestions. 

2 Two Grids: the Master Grid and the Drug Grid

Each grid contains groups of offenses, ranked by level of severity, along the vertical axis,  Groups 1-9 on the Master Grid and Groups 1-3 on the Drug Grid. Both grids contain five  groups of criminal history scores, along the horizontal axis, listed as Columns A-E.  See §  7.5, Appendices A and B. 

When the offense of conviction and the criminal history score are determined, the  sentencing options for that conviction are found in the box where offense row and  criminal history column intersect.  

3 Ranking of Offenses 

The Commission has ranked all felonies in the D.C. Official Code in groups by level of  severity.  Ranking was based principally on a sense of where the offense belonged (using  typical, rather than atypical, examples of each offense) and historical sentencing  practices. There are nine groups of offenses on the Master Grid (from First Degree  Murder While Armed in Group 1 to Receiving Stolen Property in Group 9) and three  groups on the Drug Grid (from distribution while armed in Group 1 to attempt  distribution in Group 3).   See Appendices C, C-I, and D. 

The Offense Severity Group is based on the offense of conviction, see § 7.20, and not  upon the underlying conduct.  There is no discretion to decide in which group to place the offense of conviction.  The Commission has attempted to assign every felony in the D.C.  Official Code to an Offense Severity Group. If you encounter a D.C. Official Code felony  that has not been assigned to an Offense Severity Group, please inform the Commission  and it will rank it appropriately. 

4 Criminal History Scores

There are a series of rules for computing a criminal history score that depend primarily  on (1) the number and severity of prior convictions and adjudications and (2) the length  of time between the imposition or the expiration of the defendant’s last sentence and the  commission of the instant offense. 

5 Sentencing Options

All boxes have a prison option.  The numbers within the box indicate the range within  which the prison sentence must fall, unless a departure principle applies.  See Chapter 5,  § 7.7.  Note that the higher number in the box would change (expanding the range within  the box) if a statutory enhancement applies. See Chapter 4, § 7.9. 

Some boxes (dark gray) permit a short split sentence. A “short split” sentence is one where the time to be served initially is six months or less. A short split sentence is  permissible in any box where, historically, at least 25% of the cases resulted in either a  short split or probation.  To impose a short split, the court must impose a prison sentence  that falls within the prison range in that box, suspend execution of all but six months or  less of that sentence -- but not all of it -- and impose up to 5 years probation.  A straight  prison sentence also is permissible in these boxes. 

Some boxes (light gray) permit a probation sentence.  Probation is an option in any box  where, historically, 25% or more of the cases resulted in a sentence to probation. To  impose probation,  the court must impose a prison sentenced that falls within the prison  range in that box, suspend execution of all of it [ESS all] and impose up to 5 years  probation.  A short split, described in the  previous paragraph, or a straight prison sentence also is permissible in these boxes.  See § 3.7.  

The remaining boxes (white or unshaded)  permit only a prison sentence, unless a  departure principle applies. See Chapter 5. 

6 Statutory Enhancements

The system accommodates statutory enhancements by raising the higher number in the  box by the same percentage or ratio as the statutory maximum is increased.  See Chapter  4. 

7 Departure Principles 

 

There are non-exclusive lists of aggravating and mitigating factors that permit the court  to sentence outside of the box.  If the court  finds one of the enumerated factors to be  substantial and compelling in a given case, the court is not bound by the grid options and  ranges.  Similarly, if the court finds  another substantial and compelling reason,  comparable in gravity to the enumerated factors, that  aggravates/mitigates substantially the seriousness of the offense or the defendant’s culpability, the court is not bound by the  grid options and ranges.  There are no limitations on the sentence the court can impose if  it finds a substantial and compelling reason to depart.  Any legal sentence may be imposed.  See Chapter 5. 

8 Rules for Consecutive and Concurrent Sentences 

There are rules for imposing consecutive or concurrent sentences in some cases.  Judicial  discretion applies in other cases.  See Chapter 6.  See also § 5.2.4. 

9 Exceptions

(a) Rule 11(e)(1)(c) pleas control the sentence or sentencing range regardless of the  otherwise applicable grid options or prison range. 

(b) Every offense with a mandatory minimum is found in a box whose prison range  contains that mandatory minimum.  The guidelines do not change the mandatory  minimums and the court has no discretion to sentence below the mandatory minimum. 

3 Effective Date  

The Sentencing Guidelines apply to all felony cases where verdicts and pleas are entered  on and after June 14, 2004.   

4Use of Sentencing Guidelines Manual in Effect on the Date of Sentencing 

The sentencing court shall use the Sentencing Guidelines Manual in effect on the date  that the defendant is sentenced. The 2005 Manual is effective on June 14, 2005. The  amendments to the 2004 Manual, which are included in the 2005 Manual, are listed in  Appendix J.  

5 Pilot project  

The sentencing guidelines are being implemented initially as a pilot project. The purpose  for introducing the guidelines as a pilot project  is to give the Commission the  opportunity to assess implementation, discover where the problems lie, and make such  adjustments as may be necessary based on experience rather than prediction.  While all sentencing guideline systems are continuously being updated and refined, there should be greater flexibility during this pilot project  to revise the basic  design than we would  anticipate when a more permanent system is adopted in the future.  

Note: The sentencing guidelines apply to ALL felonies being sentenced before ALL  judges during this pilot project. 

6 Continuing Role of the Commission  

1 Monitoring and Refining the Guidelines

The Commission will be monitoring the implementation of the guidelines, collecting data  and making recommendations on adjustments that should be made both during the pilot  project and thereafter.  Two issues that the Commission will be examining are whether  the options and ranges need to be adjusted and whether the offenses are ranked properly,  especially for offenses that can be committed in very different ways. 

The Commission will also make changes to the Practice Manual to clarify the sentencing guidelines or to create new policy rules where necessary. See Appendix J, which lists new amendments in the June 14, 2005 Practice Manual.  

The Commission strongly encourages questions from criminal justice practitioners  concerning the applicable sentencing range  or options for individual cases under the  Sentencing Guidelines. If you have a Guidelines application inquiry, please contact us at  (202) 727-8822. The Commission provides information to assist in understanding and  applying the Sentencing Guidelines. The information provided is not binding on the court  or parties in any case. However, the issues raised by the inquiry may be used to inform subsequent revisions of the Practice Manual. 

2 Research

The Commission intends to undertake research to assist its future decision-making  processes.   

3 Automating the Guideline Calculation Process

The Commission is contracting with an outside vendor to establish a web-based system that will automatically calculate the appropriate sentencing options for each conviction  and each case.  The system will also capture sentencing data that can be used in  monitoring and refining the guidelines.